Guantánamo and the Death Penalty: Two Terrible Ideas Come Together

The military commission hearing in the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri) beginning today will once again put on the world stage two of the worst U.S. ideas: Guantánamo and the death penalty.

The hearing takes place in Guantánamo — bad idea number one — where al-Nashiri has been detained for years, following his secret imprisonment and torture. As our European allies in countries including Poland, the U.K. and Spain are forced to deal with their complicity in the shameful U.S. program of torture and secret prisons and as our enemies continue to use the detention camps as a recruiting tool, the reasons to close Guantánamo, not start new trials there, are mounting.

Al-Nashiri’s hearing is in a capital case, the second really bad idea we cling to in this country. We still have the death penalty, although we are in the minority, and we share the distinction of “most executions” with human rights outlaws: China, Iran, North Korea and Yemen.

The fact that the hearing is in the military commissions (we’re going to stop counting bad ideas now) — will force Rick Kammen, longtime capital defender and al-Nashiri’s “learned counsel,” to make an argument he hasn’t needed in a long time, maybe a couple of decades. At issue is an indigent defendant’s right to receive funding for the investigation and the experts needed to defend against capital charges and the death sentence, and to ask for that funding outside the interested ears of the prosecution. (In legal Latin, such hearings are called “ex parte,” and they are as routine as the sound of ceiling fans in such bastions of “enlightened” capital practice as the courts of Mississippi and Louisiana.)

Should a puzzled reporter or observer lean over to a lawyer today in Guantánamo and ask what would this hearing look like in federal court, the answer is that there would never be such a hearing in a federal court. The right for defense funding of experts and investigators, and the right to ask for that funding privately — without having to reveal defense strategy or the progress of the investigation — has been established in federal courts for decades. It is universally recognized in federal capital trials that an indigent defendant gets to go before the court and say what he or she needs for a fair trial — without having the other side listen in.

What is even more surprising is that everyone seemed to recognize this state of play when the need for confidential hearings was raised. The judge indicated that the parties should ask the Convening Authority of the military commissions, and they did so together. It is worth noting that the motion to have “ex parte” communications about funding for experts and investigation was a joint motion of the defense and the prosecution. Despite this fact, it was denied by the Convening Authority. Al-Nashiri’s hearing beginning today at Guantánamo may decide what the military judge will do now.

Before giving the prosecution too much credit, though, we should point out that the “sauce for the goose, sauce for the gander” argument doesn’t really apply here. The defense has only one source of funding for its investigation and experts: the military. The prosecution isn’t limited that way. If they want something — say a couple dozen lawyers and investigators to pursue evidence in Yemen, or Saudi Arabia — and the military turns them down, they will get all they need from the endless supply of Department of Justice lawyers and CIA and FBI investigators.

And that brings us to the second big issue for the hearings this week in al-Nashiri’s case: the proposed “security” measures that the defense team, the American Bar Association, and others have said violate the attorney client privilege. There, the issue is an old one that will persist as long as these Guantánamo trials do; the vexing problem for the government of keeping secret the identities of the torturers and the details of the torture while trying to make the trial of a tortured man look fair.

The “new” military commission has a new motto: “Fairness, Transparency, Justice.” But this week is all about a system that cannot seem to provide basic rights to a defendant. Stay tuned from more news from Gitmo later this week.